NJAC Challenge: Need For Transparency

Is transparency, a boon or a bane? The face-off between the Government and the apex court over the National Judicial Appointments Commission, saw this blunt question being posed by the specially constituted 5 judge bench to the government.

The arguments took an unexpected turn after the Attorney General stressed on the need for “transparency” that the Commission would usher in.

With the prospect of the NJAC falling within the purview of the Right to Information Act, the Justice Khehar led bench expressed worries over the potentially “disastrous” impact. Justice Khehar observed that if the inner workings of the NJAC, including adverse comments and findings against a candidate, were made public through RTI, it would have a devastating impact on the candidate in question. He also argued that such a mechanism would dither the members of the NJAC in expressing honest views on the eligibility and proficiency of candidates.

Juxtaposing this example against the Collegium system, Justice Khehar reasoned that the latter allows for opinions to be kept behind closed doors allowing for a more forthright discussion on the competency of the candidates being considered.

The Attorney General argued that the new system of appointments provides for a see-through structure, as the people “ought” to know the reasons for, either, selection or rejection of a candidate.

The Attorney General, today, also made his submissions on the need for “eminent persons” in the NJAC. The AG stressed on the need for allowing greater participation of civil society in the selection process. Mukul Rohatgi said that a holistic approach to selection requires that factors beyond “legal acumen” are also considered, before approving the candidature. Participation of civil society, the government argued, was also in line with best global practices.